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2. LATEST HISTORICAL DEVELOPMENT
2.1. Working Towards a Moratorium.
2.1.1. Witherspoon v. Illinois (1968)
2.1.2. Mc Gautha v. California (1971)
2.2. Suspending Capital Punishment.
2.2.1. Furman v. Georgia (1972)
2.2.2. Aftermath of Furman
2.3. Reinstating Capital Punishment.
2.3.1. Gregg v. Georgia (1976)
2.3.2. Gary Mark Gilmore
2.4. Hesitant Revival of America’s Death Chambers.
2.4.1. Coker v. Georgia (1977)
2.4.2. Enmund v. Florida (1982)
2.5. Receding Involvement of the US Supreme Court
2.5.1. Tison v. Arizona (1987)
2.5.2. The Junvenile Death Penalty
2.5.3. Insanity and Mental Retardation.
2.6. Recent Limitations of Capital Punishment.
2.6.1. Atkins v. Virginia (2002)
2.6.2. Roper v. Simmons (2005)
2.7. Current Situation.
2.7.1. Capital Crimes Today
2.7.2. Execution Methods Today
2.7.3. Proponents and Opponents – Who Are They?
3. PRO AND CONTRA CAPITAL PUNISHMENT
3.1. The Purpose of Punishment.
3.2. The Deterrent Effectiveness of Capital Punishment
3.3. To Be or Not to Be – The Constitutional Question.
3.4. Arbitrariness and Discrimination.
3.5. Miscarriages of Justice.
3.6. The Morality Issue.
3.7. The Discussion about Lethal Injection.
3.8. Capital Punishment – Bargain or Expense?
APPENDIX – A State by State Overview
The death penalty was once a widespread and general practice in order to combat crime and exercise retribution. Throughout the last few decades, however, this practice has constantly declined and executions have become quite rare in most industrialized countries. At the moment, there are 133 countries that have abolished capital punishment in law or practice and 64 countries that retain this means of punishment. Of these 64 retentionist countries, only one – the Republic of Belarus – is located in Europe. Moreover, the USA is the only western civilized country in the list of all 64 retentionist states that is still using the death penalty (DPIC “Abolitionist and Retentionist Countries”).
The Federal Republic of Germany, for example, abolished the death penalty in 1949 as a consequence of World War II, and the former German Democratic Republic followed in 1987 (Mandery 631). Also the United Kingdom, to which the United States probably has the strongest bond, abolished capital punishment in 1998 with the adoption of the Rome Statute for the International Criminal Court (Schabas 263). The USA, however, refused to sign this statute. Rather, it sides with countries with whom it has little in common and against whom it usually wants to define itself because of their lack of democracy or their human rights abuse (Steiker 97). So, why is America not following the trend away from state-sanctioned killing?
As Haines suggests, one of the most important reasons is America’s enormous crime rate. Compared with other western civilized and industrialized countries, the risk of being raped, robbed, attacked or killed is much greater in America, and so is the Americans’ fear (4).
According to Marshall, however, the retention of capital punishment indicates the strong democratic character of the United States. Since opinion polls in Canada or Germany revealed that the death penalty, in these countries, was supported almost as much as in the USA, the abolition in these countries, he argues, only signals their governments’ immunity towards public opinion (639).
But high homicide rates and strong public support for the death penalty might just be two of many reasons why the USA is still proposing capital punishment. As Steiker points out, one single theory alone is unlikely to explain America’s exceptionalism in regard to the death penalty. She, too, mentions the extensive role of crime in the political arena and America’s populist political behavior, but also emphasizes the state power concerning criminal law or the exceptional role of the South due to its unique history of slavery (Steiker 99-119).
Alone the consideration of possible reasons for the United States’ retentionist position indicates the versatility of capital punishment. In this paper, I want to deal with this highly controversial and multi-layered topic of the death penalty by (1) providing an overview of its historical development in contemporary America including a description of its current situation in the USA and (2) presenting various pros and cons of the death penalty that have been debated heavily up to the present moment. These parts, however, are interdependent and require mutual understanding. Just as the description of historical development cannot do without debating certain issues, the debate around capital punishment cannot be fully understood without an idea of the recent development of the death penalty. This paper, however, is not going to answer the question why America is still retaining capital punishment. Rather, it is supposed to help building one’s own opinion about possible reasons by providing the necessary background information.
The history of America’s death penalty is as old as America’s history itself. It is common knowledge that the Britons, since America’s exploration, have had a dominant position among all settlers in the newly founded country of freedom. They not only brought the English language with them but also many customs and traditions, one of which was the death penalty. The first execution1 took place in Jamestown, Virginia in 1608 for the crime of espionage, and more than 14,000 people have lost their lives in an execution since then (Haines 7).
However, a lot has changed within 400 years. Since the 18th century, abolitionists2 have constantly challenged the death penalty, sometimes with more, sometimes with less success, and their impact on capital punishment’s development is unquestionable. Not only have the crimes for which people would receive a death sentence been limited enormously, also the methods used have become more and more ‘civilized’. In contemporary America, no one would receive the death penalty for crimes such as stealing grapes or striking one’s mother, and execution methods like burning someone alive are no longer imaginable (DPIC “History”).
In addition to this, what is significantly more important, the attitude towards capital punishment has changed tremendously. Public sentiment, probably also influenced by international abolition of capital punishment, has begun to turn away from state-sanctioned killing. Many Americans, nowadays, regard the death penalty as highly controversial, and the question of whether the death penalty, in a western civilized society, is morally and ethically tenable punishment has been brought up many times.
In this chapter of recent history, I would like to show the development capital punishment has made since the 1970s when abolitionists’ activism was at its peak. I will begin with the case Furman v. Georgia , which was the most important achievement when it comes to challenging the death penalty. Never before or after was the death penalty so close to being abolished. Moreover, the Furman case marks the advent of a new death penalty era also referred to as the modern death penalty era. It is this modern era of capital punishment I want to concentrate on in this paper. However, in order to fully understand the mood at the beginning of the 1970s, it is vital to say something about the preceding decade as well.
At the beginning of the sixties, probably no one would have dared to predict the nation’s highest court to announce a judgment like Furman in near future. Even though capital punishment had been an issue in the preceding two centuries, debates had predominantly taken place in political forums. It was only in the 1950s that abolitionists had started using the courts systematically to try to undermine capital punishment. In this combat, however, no one “had seriously claimed that executions per se were fundamentally inconsistent with any part of the U.S. Constitution” (Haines 24). Rather, it had been claimed that certain procedures or “mechanical aspects” like shooting violated the constitution on Eighth Amendment grounds since they were regarded as “cruel and unusual.” The Supreme Court, however, had claimed that “a method of execution could be viewed as unconstitutionally cruel only if it involved an unnecessary degree of pain, was intended to produce extreme suffering, or was inherently barbarous.” (Haines 24)
Therefore, it was a completely new notion at the beginning of the sixties to regard capital punishment in general as unconstitutional, as a violation of the Americans’ fundamental rights (Haines 24). Of course, this does not mean that all Americans shared this opinion; not even the majority did so. Nevertheless, it was a significant change in American history which one needs to pay attention to. After all, it was due to this upcoming notion that a judgment like Furman’s was possible at all. Very important for the encouragement of the abolitionists to resolutely combat capital punishment were several law review articles in 1961 implying that the death penalty “might be vulnerable to attack by litigators” (Haines 26). In one of these articles, the suggestion was made that contemporary standards of decency were different from those centuries ago. Therefore, capital punishment might be regarded as “cruel and unusual punishment” even though it was common at the time the Constitution was written. When, in addition to this, even a Supreme Court Justice indicated that the aforementioned constitutional arguments suggested in the law review articles might be considered by the Court, a concerted assault of the death penalty was encouraged (Haines 26).
According to Dershowitz, this dissent by a Supreme Court Justice was meant as an intentional signal for the abolitionists and this was understood by them. However, abolitionist lawyers did not expect the Court to strike down the death penalty in only one judicial stroke since they knew the Supreme Court could not afford to lose its public credibility. That is why they went for an indirect attack of capital punishment on grounds of racial discrimination and selected trial procedures (Haines 27).
In order to be able to fight against the death penalty on racial discrimination grounds, a lot of supporting data needed to be gathered. Even though, according to
Martschukat, rape cases had been said to be racially biased for about 70 years and it seemed to be common knowledge that black defendants who had been found guilty of raping a white woman were much more likely to receive the death penalty than white defendants, there was only a chance to raise this issue if such a bias was adequately documented (Martschukat 132). Because of this, a large data collection was initiated in 1965 in which law students traveled throughout the South gathering material from the courts. After the collected data was analyzed and aggravating and mitigating factors were weighed up against each other, the research revealed that racial discrimination did indeed exist. As Martschukat points out, one important reason for this is the disproportional representation of Afro-Americans as jurors. In some counties in Alabama, for example, no black person had ever sat in a jury before the 1960s. With African Americans making up 95% of the local population in this area, this reveals a great imbalance (Martschukat 132). Due to the research, the abolitionists were now able to introduce the data as evidence in a number of cases during 1965 and 1966, claiming that the equal protection clause of the 14th Amendment was violated (Haines 28).
In addition to discriminatory sentencing, the abolitionists also challenged capital punishment on the grounds of three trial procedures typical at that time. The exclusion of jurors who had the slightest objection to the death penalty, according to abolitionists, “deprived defendants of their right to a fair trial.” Those juries were neither representative of the community nor were they objective in their sentences. According to Haines, they even seemed to be more likely to find defendants guilty.
Further criticism was granted to single trial procedures simultaneously determining guilt and sentence, which put capital defendants into a difficult position. If the accused wanted to introduce personal information about his character in order to encourage lenience, he might be giving incriminating evidence and, with it, assisting his own conviction (Haines 28). The third procedural argument concerning capital cases criticized the lack of sentencing standards. Since the majority of states had abandoned mandatory death sentences for capital crimes by giving juries the authorization to choose between imprisonment and execution, the decision had been made very arbitrary. Abolitionists now claimed that if America cannot but retain the death penalty, “capital trial juries must at least be supplied with relatively precise standards to use when passing sentence.” (Haines 29)
By the late 1966, the anti-capital punishment campaign had gained an impressive momentum encouraging its architects to try to stop any execution. This abolition struggle of a much broader dimension was led by the so called moratorium strategy. Abolitionists hoped to improve their chances of banning the death penalty after having had a moratorium for several years, since such a stay of executions would prove that America could survive without death as punishment (Martschukat 133). In addition to this, they hoped that after having created a logjam of death-row inmates, the states would not have the nerve to “start the bloodbath again” and therefore abolish capital punishment (Haines 30).
Working towards this moratorium, copious cooperating attorneys throughout the United States went to court in order to make claims for stays of execution. The first big accomplishments were two class suits brought up against Florida and California on behalf of all their prisoners. By attacking the arbitrariness of capital sentencing and the exclusion of jurors with opposition to the death penalty, the attorneys claimed capital punishment to be “cruel and unusual” and successfully stopped executions in these states. With the help of public interest and the controversies surrounding the death penalty, the moratorium seemed to be working in the whole country. In 1966, only one execution took place followed by two executions in 1967 (Haines 31-32). No one knew it at that time, but the moratorium had begun and was to last nine more years until the execution of Gary Mark Gilmore ended it in 1977 (Martschukat 158).
This, however, does not mean that abolitionists, during this time, rested on their success. They were constantly fighting in order to keep up the stays of executions and further challenge the death penalty. Thus, in only one year, the death row population increased from 351 in 1966 to 415 in 1967, and it was to grow even more (Martschukat 135).
In 1968, the case Witherspoon v. Illinois marked another major success in the abolitionists’ struggle to challenge the death penalty. At issue was the exclusion of jurors with moral doubts concerning capital punishment; one of the procedural wrongs that, according to the abolitionists, deprived capital defendants from their right of a fair trial. At Witherspoon’s petitioner’s trial, nearly half of the prospective jurors had been eliminated by the prosecution for having some doubts concerning the death penalty (391 U.S. 510).
In the appeal, the attorneys used data from Hans Zeisel’s research on the subject in order to show what had long been suspected: juries consisting only of jurors with no opposition to capital punishment were also likely to be “conviction- prone” (Haines 32). Even though the Supreme Court ruled that the guilty verdict in Witherspoon could stand, it limited the exclusion of capital punishment opponents from the jury. An exclusion of a juror, after the Witherspoon decision, was only justifiable when the potential juror stated that “they would never vote for a death sentence under any circumstances.” Thus, future juries were allowed to be a bit more heterogenic in regard to its jurors’ opinion about capital punishment (Haines 33).
The moratorium, however, was not exclusively marked by victories. Instead, some significant low-points, one of which was the case Mc. Gautha v. California in 1971, indicated that the accomplishment of the anti-death penalty movement was rather fragile. McGautha had been sentenced to death for murder in a bifurcated trial. His sentence, however, was left to absolute discretion of the jury. In the appeal, abolitionist attorneys criticized the lack of sentencing guidelines according to which juries would be able to pass their judgment (Haines 35).
It was not the first time that the absence of clear instructions had been claimed to be inconsistent with the 14th Amendment that grants all Americans the right to due process of law, since such absence enables the juries to impose death sentences in an arbitrary manner. And again, it was not deemed unconstitutional by the court. The judges argued that such guidelines would hinder the jury from acting mercifully and, thus, would be harming rather than helping the defendants (Haines 35).
More defeats, like the persistence of the death penalty for robbery and rape, left the abolitionists fear the de facto moratorium to come to an end, but no executions awaked. Instead, death rows were getting more and more crowded. With the demolition of procedural arguments by the courts, however, the abolitionist had no choice but to claim that the death penalty directly violated the 8th Amendment for being a “cruel and unusual punishment” in itself (Haines 36).
At the beginning of the seventies, the hoped-for success of a claim against the constitutionality of the death penalty may have seemed even more unlikely than before the McGautha ruling, even though some legislative decisions in the mid and late 1960s had gradually supported abolitionists’ views and showed them that they were not alone in their anti-capital punishment thinking. Oregon, Iowa, New York, Vermont, West Virginia and New Mexico, for example, had legislatively withdrawn their capital punishment statutes, mostly due to public opinion polls revealing that the majority of inhabitants in these states opposed capital punishment (Martschukat 137).
Nevertheless, even though encouraged, abolitionists were not very optimistic after the McGautha decision that they would manage to eradicate capital punishment once and for all. The death row population had grown from 415 in 1967 to over 600 in 1971 and so had the pressure on Supreme Court justices (Martschukat 138). The mood, at the beginning of the seventies, however, did not give much reason for optimism on the part of the abolitionist movement. In the late 1960s, riots, assassinations and conflicts had taken place next to the hippie movement and a more and more radicalizing civil rights movement. The war on poverty had failed and with the election of President Nixon, America had decided for a more conservative policy.
Nixon’s hostility towards the civil rights movement, the protest movement, and liberals was well-known and, according to Martschukat, very much accounted for him being elected. Nixon saw his task in strengthening the “forgotten American,” the one who obeys to the law, pays taxes, works from 9 to 5 and goes to church regularly. This did not include African Americans living on welfare. They were more and more singled out and negatively recognized by the white public – all being equated with those rampaging and engaging in criminal behavior (Martschukat 143).
Hence, since the conservative party had stirred the Americans’ fear of “disorder, chaos and crime,” the mood at the beginning of the 70s was marked by the longing for an orderly society dominated by values like justice and Christianity. In addition to this, a constantly rising murder rate increased the fear of crime and complicated the endeavors to abolish capital punishment (Martschukat 144).
Nevertheless, abolitionists saw their chance of attacking capital punishment in a package of four cases3 commonly referred to as Furman v. Georgia . These cases were selected because they contained many typical elements. All four appeals, for example, dealt with black defendants and white victims, two of whom were murdered and two raped. In the Furman case, the defendant had shot a man through a closed door while he was trying to break into the house. Even though the defendant was declared unable to cooperate with his lawyer, the trial took place and Furman was sentenced to death (Martschukat 138).
In Furman v. Georgia and the other three cases, the core argument against capital punishment needed to be one that was just as valid in a flawlessly functioning state. Otherwise, the justices may not declare capital punishment in itself unconstitutional but just the dysfunction of the surrounding procedures. Therefore, the defendants’ attorneys claimed that “death penalty, as administered in the second half of the twentieth century, was inconsistent with evolving standards of decency.” To support this, they also held arguments like that of tragic errors too often made in death sentences, psychological torture of death row inmates in answer to the lengthy trial period, and the unjustifiably selective decision of who to sentence to death and who not (Haines 37).
Furthermore, they argued that one must not regard the opinion of the founding fathers, who obviously did not find the death penalty cruel and unusual, as unshakable and firm. Otherwise, no other punishment from these times could be regarded as cruel or unusual, and whip and pillory would still be totally consistent with the constitution. These punishments, however, have already been eliminated by the courts (Martschukat 141).
Despite the well thought-through arguments, the hope to win these cases was not very big. Out of the nine Supreme Court justices in whose hands the decision lay, four were known to be capital punishment proponents. With only three justices definitely opposing capital punishment, everything depended on the persuasion of the remaining two justices (Martschukat 139).
Therefore, it was an even greater surprise when, on June 29, 1972, the US Supreme Court announced its decision that the death sentences of the defendants and all other death row inmates in the United States of America were overturned (Haines 38). One of the Supreme Court justices who expressly contended that capital punishment was in itself unconstitutional was Justice Brennan. He stated that there were: four principles by which we may determine whether a particular punishment is “cruel and unusual.” (…) If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment (Bedau 1997, 189- 190).
For the justices, the most convincing argument was that of unjustifiable selectiveness and arbitrariness in death sentencing procedures, since such a discretionary character would ultimately lead to discrimination against minorities. Despite the five to four majority, only two justices regarded capital punishment per se as unconstitutional. Hence, the Supreme Court’s decision did not mean that capital punishment in general was declared unconstitutional but that the death penalty as it had existed so far was now banned for being “cruel and unusual” (Haines 38).
With this reasoning, it was clear that the victory was only a fragile one and it was by no means sure that America had seen its last execution. According to Bedau, the Furman ruling was precarious, vague, and temporizing. Precarious, because the majority consisted of the minimum of five Justices who were held together by no single express rationale, each of the five preferring to write his own opinion. Vague, because it was not clear exactly what the Court had forbidden and what it would permit. (…) Temporizing, because the death penalty was not abolished outright (Bedau 1985, 4).
By criticizing death sentencing procedures only, the US Supreme Court gave states the possibility to revise their capital punishment statutes to what is constitutionally permissible. And the states seized this opportunity (Haines 14).
The first immediate reaction to Furman was the commutation of all death row prisoners. There are some uncertainties about the exact number, but there were certainly more than 550 death row inmates whose sentences were commuted and who, sooner or later, were to be released from prison because they had served their sentences. Among these ex-death row inmates were murderers, rapists and robbers. Even though critics argued that these commuted inmates would be a much greater danger for their fellow convicts and, later, for society, post- Furman studies did not verify this assumption (Marquart/Sorensen 173-174).
At this time of commutation, the number of death penalty supporters was rising steadily. Public opinion polls in 1966 had shown that, for the first time in American history, death penalty supporters were in the minority holding only 47%. With the Furman decision, now, seemingly contradicting the conservative mood at the beginning of the seventies, it was astounding (or was it not) that, in March 1973, national polls revealed 63% of Americans to be in favor of reviving capital punishment, culminating in 66% one year later (Haines 45).
Due to this death penalty supporting mood in the early 1970s, it was not surprising that the states were eager to pass new capital punishment statutes as soon as possible. They, too, sensed the hostility to any policy being soft on criminals (Bedau 1985, 4). The first state to do so was Florida. It restored the death penalty already in December 1972. Twelve more states followed this example within the following 6 months, and by 1975 the number had risen to 31 states (Haines 45).
But what kind of death penalty statutes would pass the US Supreme Court? Sixteen states4 tried to skirt arbitrariness by making death sentences mandatory for specific crimes whereas other states wanted to eradicate the discretionary character by creating sentencing guidelines listing aggravating factors that would lead to a death sentence, or aggravating and mitigating circumstances that were to be weighed against each other. According to the new mandatory statutes, capital punishment was most commonly required for killing a police officer, murder-for-hire, multiple murder, and murder by a life-sentenced inmate. These factors, more or less, also represented what was meant by aggravating circumstances. States that also listed mitigating circumstances generally referred to mental impairment, severe emotional disturbance, and juvenile delinquency (Haines 46).
In 1975, three years after the Furman ruling, 360 prisoners were already occupying death rows throughout the country again, but no one had been put to death yet. The question was: which of these new statutes would also pass the US Supreme Court? (Martschukat 151)
Abolitionists, of course, continued fighting against the reinstatement. They now concentrated on extending the already seven-year-old moratorium period hoping that the prospect of a massive wave of executions would deter the states from re- opening their death chambers (Haines 50).
Therefore, they saw one chance of challenging the new statutes in a package of five cases5 commonly referred to as Gregg v. Georgia. Two of these cases belonged to mandatory death penalty statutes, the other three cases to guided discretionary statutes. All defendants were sentenced to death because of felony murder6 with the victims, in all five cases, being white. Abolitionist attorneys tried to combat the two mandatory capital punishment statutes by claiming that arbitrariness was simply shifted “from juries to other players” and by emphasizing that capital punishment involved cruel and unusual punishment no matter what “legal niceties” preceded it. In the three cases with sentencing guidelines, they used similar arguments and maintained that “aggravating circumstances were defined too vaguely to make sentencing truly rational” (Haines 51).
The US Supreme Court decision was announced on July 2, 1976. It turned down the claim that capital punishment in its very nature is cruel and unusual according to the Eighth Amendment and permitted the sentencing guidelines of Texas, Florida and Georgia in a six to three decision (Rabkin 23). The Supreme Court argued that, developments during the four years since Furman have undercut substantially the assumption upon which their (the petitioners’) argument rested. Despite the continuing debate, dating back to the nineteenth century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. (…) all of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people (Bedau 1997, 199).
For the US Supreme Court, three elements were necessary in order to avoid arbitrary sentencing: guided discretion giving aggravating circumstances that would make death appropriate as a punishment, consideration of special mitigating elements, and “the requirement of automatic review by state appeals courts” (Haines 53). Mandatory death penalty sentencing, on the other hand, was struck down by the US Supreme Court since it failed to take individual circumstances into consideration. By allowing sentencing guidelines, the US Supreme Court contradicted its earlier McGautha ruling of 1971 in which it stated that determining factors that justify capital punishment would restrict the jury in acting mercifully. Whereas in McGautha v. California , the US Supreme Court had ruled that the lack of sentencing guidelines was not unconstitutional, it now made such guidelines a fundamental requirement (Haines 35). According to Haines, the next logical step after the decisions in the cases of McGautha and Furman would have been abolition of capital punishment. The Supreme Court, instead, created a “legal mess,” probably influenced by the strong public opinion in favor of the death penalty, and re-opened America’s death chambers (35).
For many Americans, the Gregg ruling signaled the “return to normality.” However, the first execution after Gregg , that ended the 10-year old moratorium, was everything but normal. If it had been, it probably would not have caused any fuss outside of Utah. What was so unusual with Gary Mark Gilmore’s case was the fact that he actually fought for being killed rather than appeal for extending his life (Martschukat 157).
Gary Gilmore’s criminal career was long and exhausting. Even though he reached the age of 36, he only spent three years outside of prison after his 15th birthday. The last 21 years of his life he went from one juvenile detention to another, from state prison to federal penitentiary. During this time, however, he educated himself and began to write poetry. Since his artistic talent even won him prizes, he was released early in 1972 in order to be able to attend art school. Nevertheless, despite his high IQ of 130, he did not seize this opportunity but soon got recidivist. For many an American, Gary Mark Gilmore was one sad “example of an intelligent and talented man driven into criminal behavior by horrible parents” (Ramsland 1).
His distinctiveness, however, did not exclusively refer to his intelligence. It was his unusual behavior after his death sentence that made him well-known all over America. On October 7, 1976 he was convicted of two murders and received the death penalty. He, however, did not use his legal rights to appeal but preferred “to die like man” (Haines 57). Moreover, he had chosen the method of firing squad rather than being hanged, since this, as he maintained, gave him the possibility to face death “with grace and dignity” (Martschukat 157).
This put the abolitionists in a difficult situation. Now, they could no longer argue that they were acting in their client’s respect when they appealed for a stay of execution. Hence, Gary Gilmore’s wish to be executed sincerely harmed the abolitionists’ trial to extend the moratorium as well as it harmed the anti-death penalty movement itself. Can the death penalty still be claimed to be “cruel and unusual” if convicts themselves prefer to die rather than face life long imprisonment? In the Gilmore case, abolitionists appealed over Gilmore’s “vigorous objection” and with it, substantially increased his psychological distress (Haines 58).
Right after his first stay of execution in November 1976, Gilmore had committed an unsuccessful suicide attempt by swallowing pills. After his second execution date on December 6 had been postponed as well, another one followed.
Nevertheless, abolitionists continued the protest till Gilmore’s last minute, on January 17, 1977. Even when he walked down the hall towards the execution chamber his fate was not yet decided. But it was to be his last walk. He was shot shortly after 8 o’clock after having expressed his last words, “Let’s do it!” (Ramsland 6)
For years after the Gregg ruling, executions remained infrequent events. Including Gary Mark Gilmore, only 6 people were executed between 1976 and 1982 (Haines 59). The reason for this lied in the Court granting certiorari to a great number of appeals in order to have fewer condemned inmates facing execution (Haines 54). Therefore, the US Supreme Court also prohibited death sentences based on “vaguely defined aggravating circumstances” and capital punishment for crimes in which no one was killed.
The case Coker v. Georgia marks a milestone when it comes to capital punishment for the crime of rape. Up to this point, receiving the death penalty was not unusual for both murderers and rapists. But this was to be changed in 1977. Coker was a man with a long criminal record. He had already been sentenced for various crimes like murder, kidnapping, and rape but escaped prison in 1974. He immediately used his ‘newly won freedom’ for disobeying the law, when he broke into the house of a couple where he tied up the man and raped the woman. He flew with the woman as his hostage but was arrested by the police shortly thereafter. Hence, not only did he have to face another lawsuit for escape but also for armed robbery, rape, and kidnapping (Latzer 61).
The jury found Coker guilty and decided for the punishment of death because of two aggravating circumstances: the fact that he had committed capital felonies prior to this one, and the fact that the rape had been committed in the course of another capital felony. When the appeal reached the Supreme Court in 1977, it was claimed that the death penalty was disproportionate for the crime of rape and, therefore, unconstitutional in this respect. With seven justices concurring, the appeal was won with a clear majority. The justices substantiated their decision by pointing out that “the Eighth Amendment bars not only those punishments that are barbaric but also those that are excessive in relation to the crime committed. Under Gregg , a punishment is excessive and unconstitutional if it (…) is grossly out of proportion to the severity of the crime.” With this statement, the Court confirmed the legislative rejection of death as an appropriate punishment for rape of an adult woman and declared it as disproportionate punishment thereof (Latzer 62).
Another case that marked severe limitations in capital sentencing is Enmund v. Florida . The petitioner Enmund was involved in a robbery in the case of which people were killed. Therefore, he was sentenced to die for participating in a felony murder even though he was only sitting in the escape vehicle while the shooting took place. Thus, Enmund claimed that he never intended to kill someone (Latzer 111).
According to Latzer, the felony murder is a problematic issue since the defendant might have killed the victim without intending to do so, just because he committed a felony that was responsible for the victim’s death. In the case Enmund , however, the problem was even worse, for Enmund neither intended to kill someone nor actually fired any shots causing the killing (Latzer 111).
Therefore, the US Supreme Court overturned Enmund’s death sentence and rejected capital punishment for defendants who did not kill stating that the death penalty was not an adequate response for a defendant who “neither attempted nor intended” to take a life (458 U.S. 782).
The cases Coker and Enmund are two examples of the Supreme Court’s hesitant behavior towards executions. Despite the growing support for capital punishment, the Supreme Court seemed to have some of the hoped-for scruples to start a massive wave of executions creating a blood bath. It was meant that states were only allowed to sentence their worst criminals to death and only accompanied by procedures unique to capital cases. This granted special treatment to capital defendants since their trials were guaranteed to be much longer and more elaborate than those of non-capital defendants (Haines 56).
With the case Enmund , however, the US Supreme Court made one of its last steps towards an attempt at diminishing the number of death row inmates. Since even the Enmund decision was made with a fragile majority of just five justices, it was not surprising that the last word in this respect had not yet been spoken.
The mood in the United States at the beginning of the 1980s gradually changed. With the election of Ronald Reagan as president, a new right wind blew in America. Reagan had been emphasizing the American value of self-reliance in his election campaign and stood for less interference by the government. Moreover, his policy opposed social and cultural changes made in the 60s and 70s and valued family life, Christian education, and morals. Since Ronald Reagan was elected by the Americans, or at least the majority of Americans, these values seemed to be meeting public needs (Martschukat 172-173).
This changed mood, however, was also recognizable in Supreme Court decisions at this time. Reagan had nominated three new Supreme Court justices, who supported the receding involvement concerning capital cases. More than 1,000 people were occupying America’s death rows at the beginning of the 80s, a condition regarded as intolerable by more and more people (Martschukat 165). In addition to this, the introduction of a new execution method – lethal injection – diminished scruples about putting a criminal to death and encouraged future executions. After all, lethal injection was presented as a new humanitarian alternative to the electric chair and its counterparts. Being more reliable and less cruel, it was soon adopted by the majority of states, which increased the number of executions (Martschukat 169- 171).
During this time of growing support for executions and less interference by the government, the US Supreme Court decided to withdraw from its involvement in capital cases. It now left most of the procedural details to the responsibility of the states, which resulted in fewer grounds for appeals. Thus, the pace of executions accelerated from year to year (Haines 73). Moreover, the US Supreme Court started to reverse itself in copious decisions throughout the 1980s and 90s and announced that it would stop to tell the states how to handle capital murder trials. Appellate courts, for example, no longer had to ensure that all similar capital cases received equal and consistent treatment. Furthermore, Florida, the only state that allowed its trial judges to impose capital punishment against the jury’s recommendation, was granted permission to uphold this procedure in 1984 (Haines 74-75).
One example of the Supreme Court reversing its earlier decisions is the case Tison v. Arizona , where it reversed its decision made five years earlier in Enmund v. Florida that nobody who neither killed someone “nor attempted or intended” to do so could be sentenced to death. The Tison brothers had helped their father to escape from prison for which they had taken weapons with them. When their escape vehicle had a flat tire, they planned on stopping and stealing a passing car. In the course of robbing the family that had stopped in order to help, the father of the Tison brothers killed the family. The brothers did not interfere or intend to help the victims, although they later stated that they were taken aback by the killings (Latzer 122- 123).
They were apprehended shortly thereafter and tried for capital murder, robbery and kidnapping under Arizona law, according to which each participant in a felony murder is “legally responsible for the acts of his accomplices.” They all received the death penalty disregarding mitigating factors like the defendants’ youth or the absence of prior felony records (Latzer 121-122)..
Nevertheless, the Supreme Court upheld the death sentence. According to the court, Tison v. Arizona was distinct from Enmund v. Florida for two reasons. First, the brothers could have anticipated a murder to take place because they had been taking weapons with them. Therefore, the US Supreme Court accused them of having “the culpable mental state of reckless indifference to human life” for which the Eighth Amendment would not prohibit capital punishment. Second, the Tison brothers were involved in the crime to a much larger extent than Enmund, who had been sitting in the escape vehicle only, since the Tison brothers, in contrast to Enmund, were at the murder scene (Latzer 121).
With this decision, the former ruling that murder defendants who did not kill must not receive the death penalty was overturned and reversed.
When it comes to capital punishment for juvenile defendants, the cases Thompson v. Oklahoma (1988) and Stanford v. Kentucky (1989) were of great significance. Even though the first execution of a juvenile delinquent in America took place as early as 1642, juvenile executions remained infrequent events compared to the total number of executions. On average, there has been one juvenile execution per year accounting for less than 2% of all executions since the beginning of the American death penalty history. Nevertheless, with the “evolving standard of decency,” also the criticism of executing juvenile delinquents rose (Streib 4).
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